A woman driving in a highway construction zone at night left the paved road surface, went over a drop-off, and overturned her car after trying to re-enter the highway. She sued the Louisiana Department of Transportation and Development (DOTD) for creating a drop-off hazard and failing to warn drivers with signs and barricades. The trial court assigned the DOTD 15 percent of the fault for the crash and awarded damages to the injured driver. The DOTD appealed the apportionment of fault and the damage awards, based on the plaintiff's failure to mitigate her damages. The appeals court redistributed the fault, agreed the driver had not mitigated her damages, and amended the damage award.

THE CRASH

Christine Barsavage (Barsavage) was driving through a construction zone in the eastbound lane of Interstate 10 in Iberville Parish, Louisiana on October 11, 1988. Barsavage was unfamiliar with the highway. At 10:30 p.m., she looked in her rearview mirror to check the truck behind her. Her car left the paved surface on the left side of the lane, going over a drop-off between the pavement and the dirt. She traveled briefly on the bumpy dirt shoulder. She slowed slightly; as she tried to return to the highway, her tire blew. The car flipped several times on the highway. Barsavage suffered a herniated disc and a cervical fracture.

TRAIL COURT DECISION

Barsavage sued the State of Louisiana through the Department of Transportation and Development. The 18th Judicial District Court, Parish of Iberville assigned 85 percent of the fault to Barsavage and 15 percent to the DOTD. The court awarded Barsavage $75,000 for physical pain and suffering, $25,000 for mental anguish, $60,900 for lost wages, $178,624 for future earnings, $57,150 for future medical expenses, $30,000 for future surgery, and $8,064.08 for past medical expenses.

The court denied Barsavage's motion for a new trial.

APPEALS COURT DECISION

DOTD appealed, claiming errors in:

Barsavage answered the appeal, challenging the apportionment of fault.

A truck driver, Wayne Wess (Wess), witnessed the crash. He testified it was dark and, given the black asphalt roadway, the area of the crash was "pitch black." He saw no warning signs or barricades to alert drivers to a construction zone, although signs were placed farther down the road. As Barsavage passed Wess, he noticed that she was over to the left. He saw her tires leave the paved part of the highway, her tire blow out when she tried to re-enter, and her car flip.

After the crash, Wess inspected the drop-off between the paved surface and the shoulder. Where Barsavage tried to reenter the highway, Wess found a height differential of eight inches. Because of darkness and the lack of markings to identify the shoulder, Wess said a driver would not have been able to see where the roadway ended and the shoulder began.

Barsavage's expert, an electrical engineer, testified that a motorist entering a construction zone must be warned with signs and barricades. He also gave his opinion that a shoulder drop-off should be no higher than two inches. He said a drop of more than two inches qualified as a hazard and the contractor should grade up such an area. Under conditions at the time of Barsavage's crash, the expert contended, "[I]t was substandard conduct not to have a line marking the edge of the roadway and the shoulder." He concluded the drop-off caused the tire to blow out, and the blowout caused Barsavage's car to overturn.

Barsavage testified that she remembered no warning signs or lines marking the edge of the highway. She returned to the scene of the crash later and found that the drop-off height varied; she estimated the height of the drop-off as "the length of a sixteen ounce Coke bottle."

A state trooper testified he had seen construction warning signs at the beginning of the project in both the east and westbound lanes. The crash occurred about 4« miles into the project. He confirmed that although the new asphalt had a dashed center line, there was no marking on the edge. He also said the scene of the crash was dark, with trees on both sides of the eastbound lane. He did not provide information about the drop-off height in the area where the crash occurred.

A civil engineer for DOTD testified construction signs were in place at the beginning and ending of the project and every half mile. DOTD had paved four feet beyond "the normal road width surface." No lines delineated the paved roadway from the paved shoulder or the paved shoulder from the dirt shoulder; according to the witness, DOTD was not required to do this. He stated that the state's policy was for drop-offs to be no more than two inches high. Although the shoulder had been graded, the witness said the dirt shoulder was incomplete. The engineer did not personally check the signs on the night of the crash.

Medical Testimony

A neurosurgeon's deposition revealed that with surgery Barsavage would be able to alternate sitting and standing, commute to work, and occasionally lift twenty pounds. The surgeon felt she would have no disability from light work and recommended, "[S]he should accept a surgery option to insure that she could be eighty percent comfortable eighty percent of the time . . ." Without surgery, Barsavage would accept a comfort level of fifty percent, continue to use medication, and possibly be unable to work. The doctor stated that "the difference in recovery with surgery would be significant in a young woman like Mrs. Barsavage."

Testimony from other surgeons added that Barsavage had been scheduled for surgery but did not show up. Moreover, after four years of scar tissue formation, it would be unlikely she would be able to return to work.

Fault of the Parties

The appeals court examined the duty of the DOTD, which requires keeping the highways and shoulders reasonably safe and "'encompasses the obligation to protect a motorist who inadvertently drives onto the shoulder of the highway.' Campbell v. Louisiana Department of Transportation & Development, 94-1052 p. 5-6 (La. 1/17/95), 648 So.2d 898, 901." The court also noted, "Prudent behavior for a motorist who inadvertently drives off the paved roadway onto the shoulder is first to reduce the speed and then to attempt a gradual re-entry after the motorist has regained control of the vehicle. Guidroz v. State, through Department of Transportation and Development, 94-0253 p. 4 (La.App. 1st Cir. 12/22/94), 648 So.2d 1361, 1364."

The court considered the nature of the conduct of each party and the relationship between this conduct and the damages awarded. "'After the court of appeal finds a 'clearly wrong' apportionment of fault," the court pointed out, "it should adjust the award, but only to the extent of lowering or raising it to the highest or lowest point respectively which is reasonable within the trial court's decision.' Clement v. Frey, 95-1119, 95-1163, p. 7-8 (La. 1/16/96), 666 So.2d 607,611."

The trial court concluded Barsavage ran off the road due to her own inattention. Moreover, according to the trial court, the drop-off of 1 1/2 inches "should not cause an accident like this to happen." Thus, the court apportioned Barsavage 85 percent of the fault.

The appeals court found "no reasonable basis" for this assignment of fault. The DOTD did not dispute Barsavage's version of the crash and its cause. No trial record showed the DOTD had met its duty to warn of the hazards, and the appeals court felt the trial court underestimated the height of the drop-off. The appeals court concluded, "The trial court committed manifest error in its finding that the DOTD adequately warned this plaintiff of the particular unreasonable hazard created by DOTD in this case. . . . These erroneous findings skewed the trial court's determination of fault, and led the trial court into clear error in the allocation of fault."

In its examination of testimony, the appeals court found the witnesses agreed that the road was dark, that no lines marked the roadway edge, and that Barsavage's tire blew and caused her car to overturn. The court pointed out:

The appeals court adjusted the DOTD's fault to 70 percent. Because Barsavage was inattentive and tried to re-enter the highway too quickly, the appeals court assigned her 30 percent fault.

Damages: Duty to Mitigate

Barsavage claimed her inability to work and physical limitations made her unable to support herself and her children or meet the demands of parenthood. DOTD argued that she failed to mitigate her damages. Citing various cases, the appeals court emphasized that an injured person is required to take reasonable steps and exercise ordinary prudence to mitigate damages, including submitting to recommended medical treatment.

Barsavage responded that the recommended surgery carried no guarantees she would fully recover, and she said she could not afford physical therapy. She admitted she also did not want to return to work until her children were old enough for school. The trial court concluded her condition would have been improved through surgery. The court also found Barsavage did not attend vocational counseling, rehabilitation training, or physical therapy. Barsavage's home state, Texas, provided many of these services at no cost. Finally, the court observed that Barsavage's children were born after the crash.

Finding no error in these conclusions, the appeals court agreed that Barsavage failed to mitigate her damages. The court noted:

On December 20, 1996, the Eighteenth Judicial District Court, Parish of Iberville, concluded the trial court abused its discretion in its awards for mental anguish and for lost wages and earning capacity. Also finding the future surgery award was too speculative, the court deleted that part of the damages. The court amended the damage award as follows: a reduction in the mental anguish award from $25,000 to $12,500; a reduction in the past and future lost wages award from $239,524 to $29,940.50, and a deletion of the future surgery award. The total amount of amended damages was $182,654.58.

The appeals court affirmed the trial court judgment in all other respects, assigned trial court costs to the DOTD, and assigned appeal costs to be divided equally between Barsavage and the DOTD. Rehearing denied February 7, 1997.